J-A10027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RAYMOND ROBERT DAVIS
Appellant No. 1238 MDA 2014
Appeal from the Order Entered May 1, 2014
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002292-2010
BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED APRIL 24, 2015
Appellant, Raymond Robert Davis, appeals from the May 1, 2014
order, denying his first petition for relief filed pursuant to the Post Conviction
Relief Act, 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
The PCRA court summarized the relevant factual and procedural
history of this case as follows.
[T]he Commonwealth alleged in general that a
confidential informant … contacted [Appellant], also
known as “G” or “Gutter”, and arranged for … a
controlled purchase of heroin, which did occur at an
apartment located at 58 North Hancock Street,
Wilkes-Barre, Pennsylvania on April 7, 2010. At
approximately the same time that [the C.I.] entered
the North Hancock Street residence, surveillance
being conducted in the area by Pennsylvania State
Troopers observed [Appellant] leave a nearby
apartment located at 27 Dougher Lane, Wilkes-Barre
and enter the North Hancock Street residence. [The
C.I.] informed the Troopers that he observed
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[Appellant] enter the North Hancock Street residence
and provide the heroin for the sale. Similar contacts
and/or sales were made on April 15, 2010 and April
22, 2010.
On April 28, 2010, search warrants were
executed at 58 North Hancock Street, Wilkes-Barre
and 27 Dougher Lane, Wilkes-Barre simultaneously.
A large amount of [c]rack [c]ocaine, [p]owder
[c]ocaine, and [h]eroin were seized along with
packaging materials, cutting agents, and scales and
a surveillance system with cameras pointing both
North and South along Dougher Lane. Also located
was a large amount of U.S. [c]urrency in various
denominations. The Commonwealth alleged that the
Dougher Lane [r]esidence was a “stash house” (a
place where drugs were stored) and that the North
Hancock residence was the place where sales
occurred. The Commonwealth contended that
[Appellant] was the director of drug operations at
[the] Dougher Lane and North Hancock Street
residences as part of a heroin, cocaine, and crack
cocaine sales conspiracy.
Commencing on November 14, 2011,
[Appellant] was tried before a jury of his peers,
found guilty and convicted of [three counts of
possession with intent to deliver (PWID) and two
counts of criminal conspiracy1] on November 18,
20[11.]
…
On January 18, 2012, [Appellant] was
sentenced by [the trial court] to an aggregate
sentence of 6 ½ to 13 years[’ imprisonment.
Specifically, the trial court imposed a sentence of 18
months’ to three years for each conspiracy count,
five to ten years’ for one PWID charge, three to six
years for the second PWID count, and no further
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1
35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903(a), respectively.
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penalty on the third PWID charge. The conspiracy
sentences were to run concurrently to each other
and the PWID sentences were to run concurrently to
each other. However, the conspiracy sentences were
to run consecutively to the PWID sentences.]
…
On April 5, 2012, [Appellant] filed a [n]un[c] [p]ro
[t]unc [n]otice of [a]ppeal. On [March 12], 2013,
[this Court] affirmed the [j]udgment of [s]entence in
this case. [Commonwealth v. Davis, 69 A.3d 1289
(Pa. Super. 2013), appeal denied, 74 A.3d 1029 (Pa.
2013).] On [September 17], 2013, the Pennsylvania
Supreme Court denied [Appellant]’s [p]etition for an
[a]llowance of [a]ppeal. [Id.]
PCRA Court Opinion, 8/15/14, at 1-3.
On January 16, 2014, Appellant filed a timely counseled PCRA petition,
requesting a new trial on the basis of after-discovered evidence.2 The PCRA
court conducted an evidentiary hearing on May 1, 2014. At the conclusion of
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2
Neither Appellant, the Commonwealth, nor the PCRA court characterize the
petition as a PCRA petition. However, we note that Appellant did not file the
instant petition until after the conclusion of his direct appeal. This Court has
consistently held that any filing by a defendant after his or her direct appeal
has concluded is to be construed as a PCRA petition. Commonwealth v.
Taylor, 65 A.3d 462, 466 (Pa. Super. 2013); see also Pa.R.Crim.P. 720
cmt. (stating, “after-discovered evidence discovered after completion of the
direct appeal process should be raised in the context of the PCRA[]”). A
claim of after-discovered evidence is explicitly cognizable under the PCRA.
42 Pa.C.S.A. § 9543(a)(2)(vi). As a result, Appellant’s January 16, 2014
petition seeking a new trial on the basis of after-discovered evidence was his
first PCRA petition. Additionally, we note that a prisoner is entitled to
counsel on his first PCRA petition. See generally Pa.R.Crim.P. 904(C).
Appellant’s instant petition was counseled; accordingly there is no
representation issue in this case.
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said hearing, the PCRA court denied Appellant’s petition. On May 28, 2014,
Appellant filed a timely notice of appeal.3
On appeal, Appellant raises one issue for our review.
Did the [PCRA] court err in not granting a new trial?
Appellant’s Brief at 5.
We begin by noting our well-settled standard of review. “In reviewing
the denial of PCRA relief, we examine whether the PCRA court’s
determination is supported by the record and free of legal error.”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation
marks and citation omitted). “The scope of review is limited to the findings
of the PCRA court and the evidence of record, viewed in the light most
favorable to the prevailing party at the trial level.” Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled
that a PCRA court’s credibility determinations are binding upon an appellate
court so long as they are supported by the record.” Commonwealth v.
Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this
Court reviews the PCRA court’s legal conclusions de novo. Commonwealth
v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).
Furthermore, we note that our Supreme Court has consistently articulated
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3
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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the following four-part test to determine whether a defendant is entitled to a
new trial on the basis of after-discovered evidence.
The evidence: (1) could not have been obtained prior
to trial by exercising reasonable diligence; (2) is not
merely corroborative or cumulative; (3) will not be
used solely to impeach a witness’s credibility; and
(4) would likely result in a different verdict.
Commonwealth v. Castro, 93 A.3d 818, 821 n.7 (Pa. 2014).
The alleged after-discovered evidence in this case is in the form of an
affidavit from Bryan Pearl. Appellant argues that he should receive a new
trial on the basis of Pearl’s affidavit, in which Pearl claims full responsibility
for all of the drugs found and “reliev[es] [Appellant] from responsibility
claiming [Appellant] was innocent of any wrongdoing and of the charges
filed against him.” Appellant’s Brief at 9. The Commonwealth counters that
“Appellant erroneously argues that the [sic] Bryan Pearl’s testimony was
unavailable at the time of his trial and could not have been obtained prior to
the conclusion of trial; thereby satisfying the first prong of the four-prong
standard in this regard.” Commonwealth’s Brief at 5.
In the context of after-discovered evidence claims, this Court has
defined the “reasonable diligence” duty of a defendant in the following
manner.
To obtain a new trial based on after-discovered
evidence, the petitioner must explain why he could
not have produced the evidence in question at or
before trial by the exercise of reasonable diligence. A
defendant may unearth information that the party
with the burden of proof is not required to uncover,
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so long as such diligence in investigation does not
exceed what is reasonably expected. Thus, a
defendant has a duty to bring forth any relevant
evidence in his behalf. A defendant cannot claim he
has discovered new evidence simply because he had
not been expressly told of that evidence. Likewise, a
defendant who fails to question or investigate an
obvious, available source of information, cannot later
claim evidence from that source constitutes newly
discovered evidence. The concept of reasonable
diligence is particularly relevant where the defendant
fails to investigate or question a potential witness
with whom he has a close, amicable relationship.
Commonwealth v. Padillas, 997 A.2d 356, 363-364 (Pa. Super. 2010)
(internal citations omitted), appeal denied, 14 A.3d 286 (Pa. 2010).
In this case, Appellant and Pearl were originally supposed to be co-
defendant’s in the same trial. On the day of trial, all parties informed the
trial court that the Commonwealth had offered plea bargains. N.T.,
11/14/11, at 6, 8. Appellant rejected the Commonwealth’s offer. Id. at 9.
The Commonwealth informed the trial court that part of its plea deal with
Pearl was that he not testify for either the Commonwealth or Appellant at
Appellant’s trial. Id. at 13. The trial court informed the Commonwealth that
it would not likely accept such a plea agreement. Id. at 14. The
Commonwealth then twice rescinded its offer to Pearl on the record. Id. at
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15, 16. After further discussion on the record, the transcript notes that
Pearl did plead guilty and Appellant went to trial.4 Id. at 18.
At the close of the Commonwealth’s case, Appellant informed the trial
court that it had subpoenaed Pearl to testify in Appellant’s defense. Id. at
318. Pearl was present with his attorney in the courtroom during this
discussion. Id. at 319. Despite being under subpoena, Pearl informed the
trial court “that he does not wish to testify … because he[ was] concerned
for his girlfriend[.]” Id. at 318. Specifically, Pearl was allegedly “informed
by someone from the [Commonwealth] … that his girlfriend will not get the
… sentence she was promised” if Pearl testified at Appellant’s trial. Id. at
319. Appellant acquiesced in Pearl’s non-willingness to testify, did not put
him on the stand, and allowed him to leave the courtroom.5 Id. at 321.
The Commonwealth and the PCRA court argue that Appellant did not
satisfy the first prong of the after-discovered evidence framework, relying on
this Court’s decision in Padillas. In Padillas, the defendant’s after-
discovered evidence was his brother, who testified at an evidentiary hearing,
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4
As we noted on direct appeal, the record does not reveal the terms of the
final plea agreement between Pearl and the Commonwealth, though based
on the events that did occur, we presume this did not include the condition
that Pearl not testify on Appellant’s behalf. Davis, supra at 14.
5
On direct appeal, Appellant argued that his rights under the Compulsory
Process Clause of the Sixth Amendment were violated by the Commonwealth
“intimidating” Pearl into not testifying. Davis, supra at 13. This Court
concluded that Appellant had waived this argument by failing to raise an
objection in the trial court. Id. at 15-16.
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similar to the instant case, that the drug transactions involved in the case
were conducted by him and his friends, not by the defendant. Id. at 361.
The Commonwealth argued that Padillas’ brother’s statement about his own
involvement was available to him and could have been uncovered with the
exercise of reasonable diligence. Id. at 362. The trial court had declared
the brother as “unavailable” due to a presumed invocation of his privilege
under the Self-Incrimination Clause of the Fifth Amendment. Id. at 361.
This Court concluded the trial court “erred as a matter of law when it simply
inferred the unavailability of Daniel’s confession, given the absence of
questions about potentially incriminating topics, simply because Daniel
could have invoked his rights if asked incriminating questions.” Id. at 366-
367 (emphasis in original). This Court further concluded that Padillas’
brother was “available” for the purposes of trial. Id. at 367.
In this case, after Pearl pled guilty, Appellant subpoenaed him to
testify in his defense. However, despite being under a subpoena to testify,
Pearl stated that he was not willing to testify. Instead of taking any steps to
compel Pearl to testify, Appellant instead acquiesced in Pearl’s unwillingness.
In our view, Pearl was available to testify, and reasonable diligence required
Appellant to take some steps to compel his testimony, such as putting him
on the witness stand. If he still refused to answer any questions, Appellant
could have asked the trial court for a finding of unavailability, or to take
other remedial steps to compel Pearl’s testimony, such as a direction to
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answer, or a finding of contempt. Although the Fifth Amendment is not
specifically at issue here, similar to Padillas, just because Pearl might not
wish to answer Appellant’s questions on the witness stand did not render
him unavailable, nor did it absolve Appellant of taking reasonable steps to
secure the same.6 It is undisputed here that Pearl was present and available
to testify to the information Appellant now avers is after-discovered
evidence. As a result, we conclude Appellant is not entitled to a new trial on
the basis of after-discovered evidence. See Castro, supra; Padillas,
supra.
Based on the foregoing, we conclude the PCRA court properly denied
Appellant’s PCRA petition on the basis of after-discovered evidence. See
Fears, supra. Accordingly, the PCRA court’s May 1, 2014 order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2015
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6
Because we conclude Appellant has failed to satisfy the first-prong of the
after-discovered evidence test, we need not discuss the remaining three
prongs. See Castro, supra.
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